ITO, NEW DELHI vs. M/S NEWTECH ESTATE & INDUSTRIES (P) LTD., NEW DELHI

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ITA 2087/DEL/2011Status: DisposedITAT Delhi28 March 2016AY 2005-062 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal dismissed the Revenue's appeal. This was based on a CBDT circular revising the monetary limit for departmental appeals to the ITAT to Rs. 10 lakh, and the tax effect in this case being less than that amount.

What were the facts?

The Revenue appealed against the CIT(A)'s order deleting a penalty imposed on the assessee. The penalty was related to the classification of property transactions as capital gains instead of business income.

What were the issues?

Whether the departmental appeal should be dismissed based on revised monetary limits for appeals set by the CBDT, considering the tax effect involved.

Which sections of the Income-tax Act were involved?

Section 268A

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(2)Show list

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Income Tax Appellate Tribunal, DELHI BENCH: ‘E’ NEW DELHI

Before: SMT DIVA SINGH & SH.O.P.KANT

Hearing: 23.02.2016Pronounced: 28.03.2016

Date of Hearing 23.02.2016 Date of Pronouncement 28.03.2016 ORDER

PER DIVA SINGH, JM

1.

The present appeal has been filed by the Revenue assailing the correctness of the order dated 25.01.2011 of CIT(A)-XVI, New Delhi pertaining to 2005-06 assessment year on the following grounds wherein the Revenue assails the quashing of the penalty of Rs.6,12,588/- directed by the CIT(A): – 1. “That on facts and circumstances of the case and in law the Ld.CIT(A) erred in deleting the penalty imposed by the AO and failed to appreciate the fact that the assessee has been engaging itself in systematic and continuous activity of purchases and sale of properties in furtherance of the object in its memorandum of association. By treating the transaction as Capital Gains instead of business income, the assessee has concealed true particulars of its income.

2. That the Ld.CIT(A has failed to appreciate the fact that the assessee itself has practically been treating the properties as stock-in-trade is further evident from the fact that it has not been filing Returns of Wealth Tax, despite the fact that value of investment exceeds Rs.15 lacs in all the three years since the properties were first purchased. It was only the sale proceeds of these properties which were misrepresented as “Capital Gains” thereby the assessee has willfully evaded tax.

3. The Ld.CIT(A) failed to appreciate that it is not just the difference of opinion but the similar facts have been decided by various courts in favour of the revenue, in case of Chowringhee sales Bureau (P.) Ltd. vs CIT(1973) 87 ITR 542 (SC) & Raja Bahaddur Visheshvar Singh vs CIT 41 ITR 685(SC).

I.T.A .No.-2087/Del/2011

4.

The appellant craves to be allowed to add, delete or amend any other grounds of appeal

.”

2. No one was present at the time of hearing on behalf of the assessee. Considering the amount at stake for the Revenue, the Ld. Sr. DR was required to address Circular No.21/2015 dated 10th December, 2015 of CBDT. Considering the same in the facts on record, the Ld. Sr. DR fairly conceded that the departmental appeal has been filed wherein the tax effect involved is much less than Rs.10 lakh.

3. We have heard the submissions of the Ld. Sr. DR on this issue and perused the material on record. We find that the CBDT vide the aforesaid Circular dated 10.12.2015 has revised the monetary limit to Rs.10 lakh for filing the appeal by the department before Income Tax Appellate Tribunal. Para 3 of the aforesaid Circular has been made applicable vide para 10 retrospectively. Considering the settled legal precedent that the Board’s instructions or directions issued to the Income Tax Authorities u/s 268A of the Income Tax Act, 1961 are binding on the authorities, we dismiss the departmental appeal considering the material available on record.

4. In the result, the appeal of the Revenue is dismissed. The order is pronounced in the open court on 28th March, 2016.

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